Preview
1 BRYCE D. CARROLL, SBN 208593
DANIELLE E. POTESTIO, SBN 345143
2 OLES MORRISON RINKER & BAKER LLP
492 Ninth Street, Suite 220 ELECTRONICALLY
3 Oakland, CA 94607
Telephone: (510) 903-2001 FILED
Superior Court of California,
4 Facsimile: (510) 903-2015 County of San Francisco
carroll@oles.com 04/26/2023
5 potestio@oles.com Clerk of the Court
BY: JEFFREY FLORES
Deputy Clerk
6 Attorneys for Plaintiffs
REBECCA CARLSON-KRZYWONOS AND STEPHEN KRZYWONOS
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
CGC-23-606101
10
REBECCA CARLSON-KRZYWONOS ) Case No.:
11 AND STEPHEN KRZYWONOS, )
) REBECCA CARLSON-KRZYWONOS and
12 Plaintiffs, ) STEPHEN KRZYWONOS' COMPLAINT
) FOR:
13 v. )
) 1. BREACH OF CONTRACT
14 CHRISTOPHER ROSE, an individual and ) 2. INTENTIONAL
doing business as ROSE ARCHITECTURE; ) MISREPRESENTATION
15 and DOES 1-20 inclusive, ) 3. VIOLATION OF BUSINESS &
) PROFESSION CODE § 7159
16 Defendant. ) 4. UNFAIR BUSINESS PRACTICES
) PURSUANT TO BUSINESS AND
17 ) PROFESSIONS CODE §§ 17200, et
) seq.
18 ) 5. UNJUST ENRICHMENT
) 6. DECLARATORY RELIEF
19 )
)
20 )
)
21 )
) Complaint Filed:
22 ) Trial Date: None Set
23
Rebecca Carlson-Krzywonos and Stephen Krzywonos ("Plaintiffs") complains against
24
Christopher Rose an individual doing business as Rose Architecture ("Rose"), and Does 1
25
26
•1•
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 through 20 (all named and Doe defendants area collectively referred to as "Defendants")
2 follows:
3 THE PARTIES
4 1. Plaintiffs are, and at all times relevant herein were, residing in the County of San
5 Francisco and the owners of the real property located at 500 Bella Vista Way, San Francisco,
6 California 94127 (hereinafter, the "Property").
7 2. Plaintiffs are informed and believe Rose is, and at all times relevant herein was,
8 an individual doing business as Rose Architecture with his principal place of business in Mill
9 Valley, California and doing business in the County of San Francisco. Rose is a general contractor
10 duly licensed by the California Contractor's State License Board, license number is 949383.
11 3. Plaintiffs are ignorant of the true names and capacities of the individuals,
12 corporations and entities sued herein as Does 1 through 20, and therefore sue such defendants by
13 fictitious names pursuant to Code of Civil Procedure §' 474. When Plaintiffs learn the true names
14 and capacities of the Doe defendants sued herein, they will request leave to amend this Complaint
15 accordingly. Plaintiffs are informed and believe that each of the fictitiously named defendants are
16 responsible in some manner for the occurrences, obligations or damages alleged in this
17 Complaint.
18 4. Plaintiffs are informed and believe that each of the Defendants were an employee,
19 agent, servant, principal, or alter ego of each of the other Defendants, and were acting in that
20 capacity and with the consent, permission, and knowledge of each of the other Defendants.
21 VENUE AND JURISDICTION
22 5. Venue is proper in this Court because it is where the Subject Property is located
23 and where the acts or failures to act which give rise to causes of action contained in this Complaint
24 occurred or should have occurred.
25 6. The relief sought exceeds the jurisdictional minimum of this Court.
26
•2•
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
GENERAL ALLEGATIONS
2 7. On or around October 1, 2021, Plaintiffs and Rose entered into a written home
3 improvement contract for the Property, pursuant to which Rose agreed to provide services related
4 to the remodel and construction of Plaintiffs' residence at 500 Bella Vista Way, San Francisco,
5 California 94127 (the "Project"). In return, Plaintiffs would pay Rose a certain sum of money for
6 Rose's work. A copy of the home improvement contract (hereinafter, the "Contract") is attached
7 hereto as Exhibit "A".
8 8. The Project was to begin approximately October 1, 2021 and conclude
9 approximately November 30, 2022. Rose was to complete his work on the Project in a
10 workmanlike manner according to industry standards.
11 9. Plaintiffs paid Rose $487,814.00 pursuant to the terms and conditions of the
12 Contract.
13 FIRST CAUSE OF ACTION
14 (Breach of Written Contract Against Rose)
15 10. Plaintiffs reallege and incorporate by reference every paragraph above herein.
16 11. Rose failed to perform and breached the Contract when he provided labor, work,
17 hardware, and/or materials to the Project which were defective and did not conform with the
18 terms of the Contract and/or industry standards.
19 12. As to date, the Plaintiffs have discovered a number of defective conditions at the
20 Property stemming from the work performed by Rose at the Project, including, but not limited to:
21 • Main Entry
22 o Exterior cement plaster repairs are incomplete and not painted.
23 o Missing entry steps, flatwork, and entry stoop.
24 o New window trim is not primed or painted.
25 o Cement plaster is missing above main entry door.
26
•3•
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 o Porch light is missing.
2 • Living Room Fireplace
3 o Remodeling / construction to the living room fireplace is incomplete.
4 • Master Bedroom
5 o The bedroom access stair risers are not code compliant.
6 o The mechanical and electrical trim work is incomplete/missing.
7 o Interior sheetrock walls and trim in bedroom are not straight and plumb.
8 o Interior trim is improperly installed and finished. The finish work is
9 incomplete.
10 o The rear yard access door was improperly installed, improperly flashed,
11 incomplete, and caused water intrusion/flooding into master bedroom.
12 • Master Bedroom Closet
13 o Interior sheetrock walls and trim in bathroom are not straight and plumb.
14 o Interior sheetrock walls are not properly finished.
15 o Interior sheetrock at ceiling is incomplete.
16 o Interior trim is improperly installed and finished. The finish work is
17 incomplete.
18 • Master Bathroom
19 o The tile is improperly installed at window wall.
20 o The shower stall is not code compliant — width of shower stall is too narrow.
21 o The vanity counter top improperly penetrates into shower tile.
22 o The mechanical, electrical, and plumbing trim work is incomplete/missing.
23 o The toilet drain installation is incomplete.
24 o The toilet installation is incomplete.
25
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REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 o The vanity cabinet was not protected, damaged, and is covered with paint and
2 sheetrock joint compound.
3 • At Rear Exterior Elevation
4 o Construction debris and equipment abandoned and haphazardly placed
5 throughout rear yard.
6 o Missing and incomplete rear yard decking (1st and 2nd floor), landscaping,
7 and flatwork.
8 o The new exterior siding and window trim are improperly installed and
9 allowing water intrusion into framing.
10 o The rear yard access door was improperly installed, improperly flashed,
11 incomplete, and caused water intrusion into the 2nd floor kitchen/dining room.
12 • Garage
13 o Construction debris and equipment abandoned and haphazardly stored in
14 garage.
15 o The mechanical, electrical and plumbing work is incomplete and improperly
16 installed.
17 o The mechanical duct work is incomplete and not connected to HVAC unit.
18 o Abandoned plumbing vents are not capped.
19 • Entry Foyer
20 o The floor slate is improperly installed and incomplete.
21 o The mechanical and electrical trim work is incomplete/missing.
22 o Interior sheetrock walls and trim are not straight and plumb.
23 o Interior trim is improperly installed and finished. The finish work is
24 incomplete.
25 • Interior Stairs
26 •5•
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 o The stair risers are not code compliant.
2 o The center stair stringer was cut, disconnected, and is not attached to the
3 building structure. The treads are not supported.
4 • Second Floor Living Room
5 o The mechanical and electrical trim work is incomplete/missing.
6 o Interior sheetrock walls and trim in living room are not straight and plumb.
7 o Interior trim is improperly installed and finished. The finish work is
8 incomplete.
9 o The recessed down lighting is improperly installed. The layout of lighting is
10 not uniform/symmetrical.
11 • Kitchen
12 o The mechanical and electrical trim work is incomplete/missing.
13 o The electrical outlet layout at counter is not code compliant.
14 o The plumbing vents are missing.
15 o The dishwasher vent at counter is missing.
16 o Interior sheetrock walls and trim in kitchen are not straight and plumb.
17 o Interior trim is improperly installed and finished. The finish work is
18 incomplete.
19 o The recessed down lighting and pendant lighting are improperly installed. The
20 layout of lighting is not uniform/symmetrical.
21 o The kitchen cabinet doors and drawers are not properly installed and aligned.
22 o The kitchen cabinet trim and finish work are incomplete.
23 • Second Floor Bedroom No. 1
24 o The mechanical and electrical trim work is incomplete/missing.
25 o Interior sheetrock walls and trim in bedroom are not straight and plumb.
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REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 o Interior trim is improperly installed and finished. The finish work is
2 incomplete.
3 o The sheetrock at ceiling is improperly finished.
4 • Second Floor Bedroom No. 2
5 o The mechanical and electrical trim work is incomplete/missing.
6 o Interior sheetrock walls and trim in bedroom are not straight and plumb.
7 o Interior trim is improperly installed and finished. The finish work is
8 incomplete.
9 o The sheetrock at ceiling is improperly finished.
10 • Second Floor Hall Bathroom
11 o Interior sheetrock walls and trim in bathroom are not straight and plumb.
12 o Interior sheetrock walls are not properly finished.
13 o Interior sheetrock at ceiling is incomplete.
14 o Interior trim is improperly installed and finished. The finish work is
15 incomplete.
16 o The mosaic tile at soap/shampoo niche is incomplete — missing grout.
17 o Improper coordination of new bathroom vanity and plumbing water
18 supply/drain — cabinet frame and drawers were improperly modified to
19 complete installation. Installation is still incomplete.
20 o The mechanical, electrical, and plumbing trim work is incomplete/missing.
21 • Home Network Closet
22 o Interior sheetrock is missing.
23 o Interior sheetrock walls are not finished.
24 o Interior electrical and data installation is incomplete.
25
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•7•
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 13. Plaintiffs have performed all terms, conditions and obligations required under the
2 Contract except to the extent that such terms, conditions and obligations have been excused,
3 prevented or waived by Rose.
4 14. As a direct and proximate result of Rose's breaches of the Contract, Plaintiffs
5 have suffered, and continue to suffer, damages.
6 15. Plaintiffs are informed and believe, and thereon allege, that other material
7 breaches to the Contract exist and that Plaintiffs will amend their Complaint as to those
8 breaches when they become known.
9 16. Furthermore, as a result of Rose's breaches, Plaintiffs are entitled to recover all
10 attorney fees and legal costs incurred.
11 17. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth.
12 SECOND CAUSE OF ACTION
13 (Intentional Misrepresentation as to Rose)
14 18. Plaintiffs reallege and incorporate by reference every paragraph above herein.
15 19. Rose explicitly represented to Plaintiffs that Rose was capable of performing work
16 at the Project such that the work would be of good quality and comply with the applicable codes
17 and/or regulations; that Rose obtained the requisite permits and site inspections required for the
18 Project.
19 20. Rose's representations that Rose was capable of performing work at the Project
20 such that the work would be of good quality and comply with the applicable codes and/or
21 regulations; that Rose obtained the requisite permits and site inspections required for the Project
22 were false.
23 21. Rose knew that his representations were false when Rose made them, and/or made
24 these representations recklessly and without regard for their truth because the permits Rose
25 obtained in 2021 did not match the scope of work performed by Rose. On or around January 2023,
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•s•
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 Plaintiffs discovered that the permits did not match the scope of work performed by Rose and
2 requested Rose to obtain proper permits. On or around January 25, 2023, Rose refiled and obtain
3 permits which still did not match the scope of work performed. Later, Plaintiffs learned that the
4 original permits obtained by Rose were expired and Rose was performing work without proper
5 permits from August 27, 2023, to January 25, 2023. Overall, Rose failed to obtain appropriate
6 permits and/or site inspections that were required prior to performing work at the Project.
7 22. Plaintiffs reasonably relied on Rose's representations that Rose was capable of
8 performing work at the Project such that the work would be of good quality and comply with the
9 applicable codes and/or regulations; that Rose obtained the requisite permits and site inspections
10 required for the Project.
11 23. Plaintiffs were harmed and Plaintiffs' reliance on Rose's representations was a
12 substantial factor in causing their harm.
13 24. WHEREFORE, Plaintiffs pray for damages in an amount according to proof at
14 trial, including an award of punitive damages due to Rose's intentional misrepresentations, and
15 costs and attorneys' fees pursuant to law.
16 THIRD CAUSE OF ACTION
17 (Violation of the Business & Profession Code § 7159)
18 25. Plaintiffs reallege and incorporate by reference every paragraph above herein.
19 26. Plaintiffs entered into the Contract whereby Rose agreed to provide construction
20 and remodeling services related to the construction and improvement of the Property.
21 27. Plaintiffs are informed and believe and based thereon allege that Rose failed to
22 include certain contractual provisions in the Contract which are required for home improvement
23 contracts pursuant to Business & Professions Code §' 7159.
24 28. Pursuant to Business & Professions Code §sC 7159, the following contractual
25 provisions are required in every home improvement contract and are omitted from the Contract:
26
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REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
• A statement that upon satisfactory payment being made for any portion of the work
2 performed, the contractor, prior to any further payment being made, shall furnish to
3 the person contracting for the home improvement a full and unconditional release from
4 any potential lien claimant claim or mechanics lien authorized pursuant to Sections
5 8400 and 8404 of the Civil Code for that portion of the work for which payment has
6 been made.
7 • A change-order form for changes or extra work.
8 • The heading "Home Improvement" in at least lOpt boldface type font.
9 • The following statement in at least 12-point boldface type: "You are entitled to a
10 completely filled in copy of this agreement, signed by both you and the contractor,
11 before any work may be started."
12 • The contract shall address the commencement of work to be performed with a
13 statement that describes what constitutes substantial commencement of work under
14 the contract and a heading titled, "Approximate Start Date".
15 • The contract shall estimate the completion date of work with a heading titled
16 "Approximate Completion Date" and including the approximate date of completion.
17
• The contract shall include, if applicable, a heading titled, "List of Documents to be
18 Incorporated into the Contract" followed by a list of documents incorporated into the
19 contract.
20
• The contract shall contain, in close proximity to the signatures of the owner and
21
contractor, a notice stating that the owner has the right to require the contractor to
22
have a performance and payment bond.
23
• The contract shall contain a notice concerning commercial general liability
24
insurance.
25
• The contract shall contain a notice concerning workers' compensation insurance.
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REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 • The contract shall contain a notice with the heading "Mechanics Lien Warning".
2 • The contract shall contain a notice regarding information about contacting the
3 Contractors State License Board (CSLB).
4 • The contract shall contain a notice entitled "Three-Day Right to Cancel".
5 29. Plaintiffs are informed and believe and thereon allege Rose failed to procure a
6 valid home improvement contract pursuant to Business & Professions Code § 7159.
7 30. WHEREFORE, Plaintiffs seek an order finding the Contract unenforceable and
8 invalid due to its noncompliance with Business & Professions Code §,' 7159.
9 FOURTH CAUSE OF ACTION
10 (Unfair Business Practices Pursuant to Business & Professions Code §§ 17200 et seq. as to
11 Rose)
12 31. Plaintiffs reallege and incorporate by reference every paragraph above herein.
13 32. Plaintiffs are informed and believe and based thereon allege that Rose violated
14 Business and Professions Code §§ 17200, et seq. by operating and conducting, directly and/or
15 indirectly, a business enterprise that committed unfair business practices that are and/or were
16 unlawful, unfair and/or fraudulent or misleading, which practices materially and negatively
17 affected the value of the Property, including but not limited to:
18 • Representing that he would obtain necessary permits, approvals, etc. but failing
19 to do so.
20 • Failing to include required information and provisions within the Contract.
21 33. Plaintiffs are informed and believe and based thereon allege that Rose's acts and
22 omissions have deceived and are likely to further deceive the public.
23 34. As a direct and proximate result of these unfair business practices, Plaintiffs did
24 cause to impart funds and remuneration, and gave money to Rose, which Plaintiffs are informed
25 and believe amounted to in excess of $487,814.00. Plaintiffs' reliance on Rose's acts and
26 • 11 •
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 representations were justified because of Rose's professed expertise in the construction area and
2 Plaintiffs' relative lack of sophistication in construction practices and requirements.
3 35. Plaintiffs have been victimized by such unlawful conduct and have suffered
4 injury in fact and lost money as a result of such unfair competition. Specifically, Plaintiffs paid
5 money to Rose for the performance of construction services Rose could not lawfully conduct.
6 36. Plaintiffs are informed and believe and thereon allege that Rose has been
7 unjustly enriched by his acts and omissions, and Plaintiffs seek disgorgement and return of
8 those funds from Rose through restitution.
9 37. WHEREFORE, Plaintiffs seek an order requiring Rose to disgorge the monies
10 unlawfully obtained from Plaintiffs as payment for work performed by Rose under intentional
11 misrepresentations and without a valid contract pursuant to Business & Professions Code §,sr
12 7159, including costs and attorney's fees pursuant to statute.
13 FIFTH CAUSE OF ACTION
14 (Unjust Enrichment)
15 38. Plaintiffs reallege and incorporate by reference every paragraph above herein.
16 39. Plaintiffs and Rose entered into the Contract for Rose to complete his work in a
17 workmanlike manner according to the construction industry standards.
18 40. Pursuant to the terms and conditions of the Contract, Plaintiffs substantially
19 performed and paid in excess of $487,814.00 to Rose.
20 41. Rose accepted such payment and retained the benefit at Plaintiff's expense since
21 Rose failed to perform his work in a workmanlike manner according to industry standards.
22 42. Rose should not be unjustly enriched by his acts and misdeeds as herein alleged.
23 43. WHEREFORE, Plaintiffs seek an order that Rose has been unjustly enriched by
24 his acts and omissions, and Plaintiffs seek disgorgement and return of those funds from Rose
25 through restitution, including costs and attorney's fees pursuant to statute.
26
• 12 •
REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 SIXTH CAUSE OF ACTION
2 (Declaratory Relief)
3 44. Plaintiffs reallege and incorporate by reference every paragraph above herein.
4 45. A clear and present dispute exists between Plaintiffs and Rose concerning the
5 validity of the Contract. Plaintiffs are entitled to declaratory relief including but not limited to the
6 following:
7 • A judicial declaration as to whether the Contract is valid pursuant to the statutory
8 requirements of Business & Professions Code § 7159.
9 • A judicial declaration as to whether Rose breached the Contract.
10 • A judicial declaration as to whether Rose intentionally misrepresented to Plaintiffs
11 that his work would be performed in a workmanlike manner, comply with the
12 applicable codes and/or regulations; that Rose would obtain the requisite permits
13 and site inspections required for the Project.
14 • A judicial declaration requiring Rose to disgorge the monies unlawfully obtained
15 from Plaintiffs, including costs and attorney's fees pursuant to statute.
16 46. Declaratory relief is necessary and appropriate at this time so that the parties may
17 ascertain their rights and duties under the law.
18 PRAYER FOR RELIEF
19 Plaintiffs Rebecca Carlson-Krzywonos and Stephen Krzywonos pray for relief as
20 follows:
21 1. For general and special damages in excess of $487,814.00;
22 2. For punitive damages according to proof;
23 3. For loss of use and relocation expenses;
24 3. For other Civil Penalties as permitted or required by law;
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REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
1 4. For disgorgement of all monies paid by Plaintiffs to Rose for violation of
2 Business & Professions Code § 7159 and unjust enrichment;
3 5. For declaratory judgment in favor of Plaintiffs as specified above;
4 6. For attorney's fees and costs of suit incurred herein;
5 7. For professional and technical fees and costs;
6 8. For such other and further relief as the court may deem proper;
7
8 Dated: April 26, 2023 OLES MORRISON RINKER & BAKER LLP
9
10
BRY D. CARROLL
11 DANIELLE E. POTESTIO
Attorneys for Plaintiffs
12 REBECCA CARLSON-KRZYWONOS
AND STEPHEN KRZYWONOS
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REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT
Preview
1 BRYCE D. CARROLL, SBN 208593 DANIELLE E. POTESTIO, SBN 345143 2 OLES MORRISON RINKER & BAKER LLP 492 Ninth Street, Suite 220 ELECTRONICALLY 3 Oakland, CA 94607 Telephone: (510) 903-2001 FILED Superior Court of California, 4 Facsimile: (510) 903-2015 County of San Francisco carroll@oles.com 04/26/2023 5 potestio@oles.com Clerk of the Court BY: JEFFREY FLORES Deputy Clerk 6 Attorneys for Plaintiffs REBECCA CARLSON-KRZYWONOS AND STEPHEN KRZYWONOS 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO CGC-23-606101 10 REBECCA CARLSON-KRZYWONOS ) Case No.: 11 AND STEPHEN KRZYWONOS, ) ) REBECCA CARLSON-KRZYWONOS and 12 Plaintiffs, ) STEPHEN KRZYWONOS' COMPLAINT ) FOR: 13 v. ) ) 1. BREACH OF CONTRACT 14 CHRISTOPHER ROSE, an individual and ) 2. INTENTIONAL doing business as ROSE ARCHITECTURE; ) MISREPRESENTATION 15 and DOES 1-20 inclusive, ) 3. VIOLATION OF BUSINESS & ) PROFESSION CODE § 7159 16 Defendant. ) 4. UNFAIR BUSINESS PRACTICES ) PURSUANT TO BUSINESS AND 17 ) PROFESSIONS CODE §§ 17200, et ) seq. 18 ) 5. UNJUST ENRICHMENT ) 6. DECLARATORY RELIEF 19 ) ) 20 ) ) 21 ) ) Complaint Filed: 22 ) Trial Date: None Set 23 Rebecca Carlson-Krzywonos and Stephen Krzywonos ("Plaintiffs") complains against 24 Christopher Rose an individual doing business as Rose Architecture ("Rose"), and Does 1 25 26 •1• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 through 20 (all named and Doe defendants area collectively referred to as "Defendants") 2 follows: 3 THE PARTIES 4 1. Plaintiffs are, and at all times relevant herein were, residing in the County of San 5 Francisco and the owners of the real property located at 500 Bella Vista Way, San Francisco, 6 California 94127 (hereinafter, the "Property"). 7 2. Plaintiffs are informed and believe Rose is, and at all times relevant herein was, 8 an individual doing business as Rose Architecture with his principal place of business in Mill 9 Valley, California and doing business in the County of San Francisco. Rose is a general contractor 10 duly licensed by the California Contractor's State License Board, license number is 949383. 11 3. Plaintiffs are ignorant of the true names and capacities of the individuals, 12 corporations and entities sued herein as Does 1 through 20, and therefore sue such defendants by 13 fictitious names pursuant to Code of Civil Procedure §' 474. When Plaintiffs learn the true names 14 and capacities of the Doe defendants sued herein, they will request leave to amend this Complaint 15 accordingly. Plaintiffs are informed and believe that each of the fictitiously named defendants are 16 responsible in some manner for the occurrences, obligations or damages alleged in this 17 Complaint. 18 4. Plaintiffs are informed and believe that each of the Defendants were an employee, 19 agent, servant, principal, or alter ego of each of the other Defendants, and were acting in that 20 capacity and with the consent, permission, and knowledge of each of the other Defendants. 21 VENUE AND JURISDICTION 22 5. Venue is proper in this Court because it is where the Subject Property is located 23 and where the acts or failures to act which give rise to causes of action contained in this Complaint 24 occurred or should have occurred. 25 6. The relief sought exceeds the jurisdictional minimum of this Court. 26 •2• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT GENERAL ALLEGATIONS 2 7. On or around October 1, 2021, Plaintiffs and Rose entered into a written home 3 improvement contract for the Property, pursuant to which Rose agreed to provide services related 4 to the remodel and construction of Plaintiffs' residence at 500 Bella Vista Way, San Francisco, 5 California 94127 (the "Project"). In return, Plaintiffs would pay Rose a certain sum of money for 6 Rose's work. A copy of the home improvement contract (hereinafter, the "Contract") is attached 7 hereto as Exhibit "A". 8 8. The Project was to begin approximately October 1, 2021 and conclude 9 approximately November 30, 2022. Rose was to complete his work on the Project in a 10 workmanlike manner according to industry standards. 11 9. Plaintiffs paid Rose $487,814.00 pursuant to the terms and conditions of the 12 Contract. 13 FIRST CAUSE OF ACTION 14 (Breach of Written Contract Against Rose) 15 10. Plaintiffs reallege and incorporate by reference every paragraph above herein. 16 11. Rose failed to perform and breached the Contract when he provided labor, work, 17 hardware, and/or materials to the Project which were defective and did not conform with the 18 terms of the Contract and/or industry standards. 19 12. As to date, the Plaintiffs have discovered a number of defective conditions at the 20 Property stemming from the work performed by Rose at the Project, including, but not limited to: 21 • Main Entry 22 o Exterior cement plaster repairs are incomplete and not painted. 23 o Missing entry steps, flatwork, and entry stoop. 24 o New window trim is not primed or painted. 25 o Cement plaster is missing above main entry door. 26 •3• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 o Porch light is missing. 2 • Living Room Fireplace 3 o Remodeling / construction to the living room fireplace is incomplete. 4 • Master Bedroom 5 o The bedroom access stair risers are not code compliant. 6 o The mechanical and electrical trim work is incomplete/missing. 7 o Interior sheetrock walls and trim in bedroom are not straight and plumb. 8 o Interior trim is improperly installed and finished. The finish work is 9 incomplete. 10 o The rear yard access door was improperly installed, improperly flashed, 11 incomplete, and caused water intrusion/flooding into master bedroom. 12 • Master Bedroom Closet 13 o Interior sheetrock walls and trim in bathroom are not straight and plumb. 14 o Interior sheetrock walls are not properly finished. 15 o Interior sheetrock at ceiling is incomplete. 16 o Interior trim is improperly installed and finished. The finish work is 17 incomplete. 18 • Master Bathroom 19 o The tile is improperly installed at window wall. 20 o The shower stall is not code compliant — width of shower stall is too narrow. 21 o The vanity counter top improperly penetrates into shower tile. 22 o The mechanical, electrical, and plumbing trim work is incomplete/missing. 23 o The toilet drain installation is incomplete. 24 o The toilet installation is incomplete. 25 26 •4• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 o The vanity cabinet was not protected, damaged, and is covered with paint and 2 sheetrock joint compound. 3 • At Rear Exterior Elevation 4 o Construction debris and equipment abandoned and haphazardly placed 5 throughout rear yard. 6 o Missing and incomplete rear yard decking (1st and 2nd floor), landscaping, 7 and flatwork. 8 o The new exterior siding and window trim are improperly installed and 9 allowing water intrusion into framing. 10 o The rear yard access door was improperly installed, improperly flashed, 11 incomplete, and caused water intrusion into the 2nd floor kitchen/dining room. 12 • Garage 13 o Construction debris and equipment abandoned and haphazardly stored in 14 garage. 15 o The mechanical, electrical and plumbing work is incomplete and improperly 16 installed. 17 o The mechanical duct work is incomplete and not connected to HVAC unit. 18 o Abandoned plumbing vents are not capped. 19 • Entry Foyer 20 o The floor slate is improperly installed and incomplete. 21 o The mechanical and electrical trim work is incomplete/missing. 22 o Interior sheetrock walls and trim are not straight and plumb. 23 o Interior trim is improperly installed and finished. The finish work is 24 incomplete. 25 • Interior Stairs 26 •5• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 o The stair risers are not code compliant. 2 o The center stair stringer was cut, disconnected, and is not attached to the 3 building structure. The treads are not supported. 4 • Second Floor Living Room 5 o The mechanical and electrical trim work is incomplete/missing. 6 o Interior sheetrock walls and trim in living room are not straight and plumb. 7 o Interior trim is improperly installed and finished. The finish work is 8 incomplete. 9 o The recessed down lighting is improperly installed. The layout of lighting is 10 not uniform/symmetrical. 11 • Kitchen 12 o The mechanical and electrical trim work is incomplete/missing. 13 o The electrical outlet layout at counter is not code compliant. 14 o The plumbing vents are missing. 15 o The dishwasher vent at counter is missing. 16 o Interior sheetrock walls and trim in kitchen are not straight and plumb. 17 o Interior trim is improperly installed and finished. The finish work is 18 incomplete. 19 o The recessed down lighting and pendant lighting are improperly installed. The 20 layout of lighting is not uniform/symmetrical. 21 o The kitchen cabinet doors and drawers are not properly installed and aligned. 22 o The kitchen cabinet trim and finish work are incomplete. 23 • Second Floor Bedroom No. 1 24 o The mechanical and electrical trim work is incomplete/missing. 25 o Interior sheetrock walls and trim in bedroom are not straight and plumb. 26 •6• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 o Interior trim is improperly installed and finished. The finish work is 2 incomplete. 3 o The sheetrock at ceiling is improperly finished. 4 • Second Floor Bedroom No. 2 5 o The mechanical and electrical trim work is incomplete/missing. 6 o Interior sheetrock walls and trim in bedroom are not straight and plumb. 7 o Interior trim is improperly installed and finished. The finish work is 8 incomplete. 9 o The sheetrock at ceiling is improperly finished. 10 • Second Floor Hall Bathroom 11 o Interior sheetrock walls and trim in bathroom are not straight and plumb. 12 o Interior sheetrock walls are not properly finished. 13 o Interior sheetrock at ceiling is incomplete. 14 o Interior trim is improperly installed and finished. The finish work is 15 incomplete. 16 o The mosaic tile at soap/shampoo niche is incomplete — missing grout. 17 o Improper coordination of new bathroom vanity and plumbing water 18 supply/drain — cabinet frame and drawers were improperly modified to 19 complete installation. Installation is still incomplete. 20 o The mechanical, electrical, and plumbing trim work is incomplete/missing. 21 • Home Network Closet 22 o Interior sheetrock is missing. 23 o Interior sheetrock walls are not finished. 24 o Interior electrical and data installation is incomplete. 25 26 •7• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 13. Plaintiffs have performed all terms, conditions and obligations required under the 2 Contract except to the extent that such terms, conditions and obligations have been excused, 3 prevented or waived by Rose. 4 14. As a direct and proximate result of Rose's breaches of the Contract, Plaintiffs 5 have suffered, and continue to suffer, damages. 6 15. Plaintiffs are informed and believe, and thereon allege, that other material 7 breaches to the Contract exist and that Plaintiffs will amend their Complaint as to those 8 breaches when they become known. 9 16. Furthermore, as a result of Rose's breaches, Plaintiffs are entitled to recover all 10 attorney fees and legal costs incurred. 11 17. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. 12 SECOND CAUSE OF ACTION 13 (Intentional Misrepresentation as to Rose) 14 18. Plaintiffs reallege and incorporate by reference every paragraph above herein. 15 19. Rose explicitly represented to Plaintiffs that Rose was capable of performing work 16 at the Project such that the work would be of good quality and comply with the applicable codes 17 and/or regulations; that Rose obtained the requisite permits and site inspections required for the 18 Project. 19 20. Rose's representations that Rose was capable of performing work at the Project 20 such that the work would be of good quality and comply with the applicable codes and/or 21 regulations; that Rose obtained the requisite permits and site inspections required for the Project 22 were false. 23 21. Rose knew that his representations were false when Rose made them, and/or made 24 these representations recklessly and without regard for their truth because the permits Rose 25 obtained in 2021 did not match the scope of work performed by Rose. On or around January 2023, 26 •s• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 Plaintiffs discovered that the permits did not match the scope of work performed by Rose and 2 requested Rose to obtain proper permits. On or around January 25, 2023, Rose refiled and obtain 3 permits which still did not match the scope of work performed. Later, Plaintiffs learned that the 4 original permits obtained by Rose were expired and Rose was performing work without proper 5 permits from August 27, 2023, to January 25, 2023. Overall, Rose failed to obtain appropriate 6 permits and/or site inspections that were required prior to performing work at the Project. 7 22. Plaintiffs reasonably relied on Rose's representations that Rose was capable of 8 performing work at the Project such that the work would be of good quality and comply with the 9 applicable codes and/or regulations; that Rose obtained the requisite permits and site inspections 10 required for the Project. 11 23. Plaintiffs were harmed and Plaintiffs' reliance on Rose's representations was a 12 substantial factor in causing their harm. 13 24. WHEREFORE, Plaintiffs pray for damages in an amount according to proof at 14 trial, including an award of punitive damages due to Rose's intentional misrepresentations, and 15 costs and attorneys' fees pursuant to law. 16 THIRD CAUSE OF ACTION 17 (Violation of the Business & Profession Code § 7159) 18 25. Plaintiffs reallege and incorporate by reference every paragraph above herein. 19 26. Plaintiffs entered into the Contract whereby Rose agreed to provide construction 20 and remodeling services related to the construction and improvement of the Property. 21 27. Plaintiffs are informed and believe and based thereon allege that Rose failed to 22 include certain contractual provisions in the Contract which are required for home improvement 23 contracts pursuant to Business & Professions Code §' 7159. 24 28. Pursuant to Business & Professions Code §sC 7159, the following contractual 25 provisions are required in every home improvement contract and are omitted from the Contract: 26 •9• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT • A statement that upon satisfactory payment being made for any portion of the work 2 performed, the contractor, prior to any further payment being made, shall furnish to 3 the person contracting for the home improvement a full and unconditional release from 4 any potential lien claimant claim or mechanics lien authorized pursuant to Sections 5 8400 and 8404 of the Civil Code for that portion of the work for which payment has 6 been made. 7 • A change-order form for changes or extra work. 8 • The heading "Home Improvement" in at least lOpt boldface type font. 9 • The following statement in at least 12-point boldface type: "You are entitled to a 10 completely filled in copy of this agreement, signed by both you and the contractor, 11 before any work may be started." 12 • The contract shall address the commencement of work to be performed with a 13 statement that describes what constitutes substantial commencement of work under 14 the contract and a heading titled, "Approximate Start Date". 15 • The contract shall estimate the completion date of work with a heading titled 16 "Approximate Completion Date" and including the approximate date of completion. 17 • The contract shall include, if applicable, a heading titled, "List of Documents to be 18 Incorporated into the Contract" followed by a list of documents incorporated into the 19 contract. 20 • The contract shall contain, in close proximity to the signatures of the owner and 21 contractor, a notice stating that the owner has the right to require the contractor to 22 have a performance and payment bond. 23 • The contract shall contain a notice concerning commercial general liability 24 insurance. 25 • The contract shall contain a notice concerning workers' compensation insurance. 26 •m• REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 • The contract shall contain a notice with the heading "Mechanics Lien Warning". 2 • The contract shall contain a notice regarding information about contacting the 3 Contractors State License Board (CSLB). 4 • The contract shall contain a notice entitled "Three-Day Right to Cancel". 5 29. Plaintiffs are informed and believe and thereon allege Rose failed to procure a 6 valid home improvement contract pursuant to Business & Professions Code § 7159. 7 30. WHEREFORE, Plaintiffs seek an order finding the Contract unenforceable and 8 invalid due to its noncompliance with Business & Professions Code §,' 7159. 9 FOURTH CAUSE OF ACTION 10 (Unfair Business Practices Pursuant to Business & Professions Code §§ 17200 et seq. as to 11 Rose) 12 31. Plaintiffs reallege and incorporate by reference every paragraph above herein. 13 32. Plaintiffs are informed and believe and based thereon allege that Rose violated 14 Business and Professions Code §§ 17200, et seq. by operating and conducting, directly and/or 15 indirectly, a business enterprise that committed unfair business practices that are and/or were 16 unlawful, unfair and/or fraudulent or misleading, which practices materially and negatively 17 affected the value of the Property, including but not limited to: 18 • Representing that he would obtain necessary permits, approvals, etc. but failing 19 to do so. 20 • Failing to include required information and provisions within the Contract. 21 33. Plaintiffs are informed and believe and based thereon allege that Rose's acts and 22 omissions have deceived and are likely to further deceive the public. 23 34. As a direct and proximate result of these unfair business practices, Plaintiffs did 24 cause to impart funds and remuneration, and gave money to Rose, which Plaintiffs are informed 25 and believe amounted to in excess of $487,814.00. Plaintiffs' reliance on Rose's acts and 26 • 11 • REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 representations were justified because of Rose's professed expertise in the construction area and 2 Plaintiffs' relative lack of sophistication in construction practices and requirements. 3 35. Plaintiffs have been victimized by such unlawful conduct and have suffered 4 injury in fact and lost money as a result of such unfair competition. Specifically, Plaintiffs paid 5 money to Rose for the performance of construction services Rose could not lawfully conduct. 6 36. Plaintiffs are informed and believe and thereon allege that Rose has been 7 unjustly enriched by his acts and omissions, and Plaintiffs seek disgorgement and return of 8 those funds from Rose through restitution. 9 37. WHEREFORE, Plaintiffs seek an order requiring Rose to disgorge the monies 10 unlawfully obtained from Plaintiffs as payment for work performed by Rose under intentional 11 misrepresentations and without a valid contract pursuant to Business & Professions Code §,sr 12 7159, including costs and attorney's fees pursuant to statute. 13 FIFTH CAUSE OF ACTION 14 (Unjust Enrichment) 15 38. Plaintiffs reallege and incorporate by reference every paragraph above herein. 16 39. Plaintiffs and Rose entered into the Contract for Rose to complete his work in a 17 workmanlike manner according to the construction industry standards. 18 40. Pursuant to the terms and conditions of the Contract, Plaintiffs substantially 19 performed and paid in excess of $487,814.00 to Rose. 20 41. Rose accepted such payment and retained the benefit at Plaintiff's expense since 21 Rose failed to perform his work in a workmanlike manner according to industry standards. 22 42. Rose should not be unjustly enriched by his acts and misdeeds as herein alleged. 23 43. WHEREFORE, Plaintiffs seek an order that Rose has been unjustly enriched by 24 his acts and omissions, and Plaintiffs seek disgorgement and return of those funds from Rose 25 through restitution, including costs and attorney's fees pursuant to statute. 26 • 12 • REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 SIXTH CAUSE OF ACTION 2 (Declaratory Relief) 3 44. Plaintiffs reallege and incorporate by reference every paragraph above herein. 4 45. A clear and present dispute exists between Plaintiffs and Rose concerning the 5 validity of the Contract. Plaintiffs are entitled to declaratory relief including but not limited to the 6 following: 7 • A judicial declaration as to whether the Contract is valid pursuant to the statutory 8 requirements of Business & Professions Code § 7159. 9 • A judicial declaration as to whether Rose breached the Contract. 10 • A judicial declaration as to whether Rose intentionally misrepresented to Plaintiffs 11 that his work would be performed in a workmanlike manner, comply with the 12 applicable codes and/or regulations; that Rose would obtain the requisite permits 13 and site inspections required for the Project. 14 • A judicial declaration requiring Rose to disgorge the monies unlawfully obtained 15 from Plaintiffs, including costs and attorney's fees pursuant to statute. 16 46. Declaratory relief is necessary and appropriate at this time so that the parties may 17 ascertain their rights and duties under the law. 18 PRAYER FOR RELIEF 19 Plaintiffs Rebecca Carlson-Krzywonos and Stephen Krzywonos pray for relief as 20 follows: 21 1. For general and special damages in excess of $487,814.00; 22 2. For punitive damages according to proof; 23 3. For loss of use and relocation expenses; 24 3. For other Civil Penalties as permitted or required by law; 25 26 • 13 • REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT 1 4. For disgorgement of all monies paid by Plaintiffs to Rose for violation of 2 Business & Professions Code § 7159 and unjust enrichment; 3 5. For declaratory judgment in favor of Plaintiffs as specified above; 4 6. For attorney's fees and costs of suit incurred herein; 5 7. For professional and technical fees and costs; 6 8. For such other and further relief as the court may deem proper; 7 8 Dated: April 26, 2023 OLES MORRISON RINKER & BAKER LLP 9 10 BRY D. CARROLL 11 DANIELLE E. POTESTIO Attorneys for Plaintiffs 12 REBECCA CARLSON-KRZYWONOS AND STEPHEN KRZYWONOS 13 14 15 16 17 18 19 20 21 22 23 24 25 26 • 14 • REBECCA CARLSON-KRZYWONOS & STEPHEN KRZYWONOS' COMPLAINT